Excerpt:.....co. ltd. v md. makubur rahman, 1993 (2) glr 430 and new india assurance co. ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - where in one suit the plaintiff asked for declaration of title and recovery of possession and in a similar suit another plaintiff merely asked for recovery of possession without asking for declaration, of title, the character of the suit in either case is fundamentally same and the difference in the language would not alter the position with regard to the legal requirements to be established by the plaintiff for success in the suit......misra, j. 1. defendants 1, 3 and 4 are the petitioners. the plaintiff-opposite-party instituted title suit no. 128 of 1957 in the court of the munsif, aska asking for the following reliefs-'(a) the plaintiff is the rightful owner of the suit lands as defendants have got no manner of right, title or interest over the same and (b) the suit lands be delivered to the plaintiff after ejecting the defendant 1 therefrom through court and putting the plaintiff in possession of the same.' the suit was therefore one for declaration of title and recovery of possession. the disputed properties cover an area of 13.68 acres and the plaintiff valued the suit at rs. 1700/-. a preliminary issue was raised in the trial court regarding the valuation of the properties as the defendants contended that the.....

Judgment:ORDER

G.K. Misra, J.

1. Defendants 1, 3 and 4 are the petitioners. The plaintiff-opposite-party instituted Title Suit No. 128 of 1957 in the Court of the Munsif, Aska asking for the following reliefs-

'(a) The plaintiff is the rightful owner of the suit lands as defendants have got no manner of right, title or interest over the same and (b) The suit lands be delivered to the plaintiff after ejecting the defendant 1 therefrom through Court and putting the plaintiff in possession of the same.'

The suit was therefore one for declaration of title and recovery of possession. The disputed properties cover an area of 13.68 acres and the plaintiff valued the suit at Rs. 1700/-.

A preliminary issue was raised in the trial Court regarding the valuation of the properties as the defendants contended that the suit was beyond the pecuniary jurisdiction of the Munsif, Aska. This preliminary issue was decided by the learned Munsif against the plaintiff holding that the value of the suit lands would be at least Rs. 5000/- and he directed return of the plaint for presentation in proper Court. Against this order dated 4th of November 1960, the plaintiff filed an appeal to the District Judge, Berhampur, who, in his judgment dated 31st July, 1961, in Misc. appeal No. 124 of 1960 held that the proper value would be Rs. 2775/- and the valuation given by the plaintiff in the plaint was inordinately low and evidently arbitrary and capricious. Against this order of the learned District Judge this Civil Revision has been filed.

2. The learned District Judge came to the conclusion that Section 7(iv)(c) and not Section 7(v)(c) of the Court Fees Act governs this case. Section 7(iv)(c) and Section 7(v)(c) are as follows:

'7(iv)(c) -- to obtain a declaratory decree or orderwhere consequential relief is prayed

x x x x x x x x x In all such suits the plaintiff shall state the amount at which he values the relief sought.

7(v)(c) -- where the land pays no revenue, or has been partially exempted from such payment, or is charged with any fixed payment in lieu of such revenue, and net profits have arisen from the land during the year nextbefore the date of presenting the plaint -- 15 times such net profits; but where no such net profits have arisen therefrom -- the amount at which the Court shall estimate the land - with reference to the value of similar land in the neighbourhood;'

The applicability of these two sections to suits, in which the relief claimed is for recovery of possession, has been the subject-matter of great controversy. It Is elementary that in every suit where the plaintiff claims recovery of possession, he must have to establish his title before the relief for possession is granted unless it is a suit under Section 9 of the Specific Relief Act or a proceeding underSection 145 Cr. P. C.

The question for consideration Is whether the essence of the matter is in any way affected by adopting different phraseology in the plaint. Language used in the plaint would not make any difference in the nature of relief sought. Where in one suit the plaintiff asked for declaration of title and recovery of possession and in a similar suit another plaintiff merely asked for recovery of possession without asking for declaration, of title, the character of the suit in either case is fundamentally same and the difference in the language would not alter the position with regard to the legal requirements to be established by the plaintiff for success in the suit. It has therefore teen held that where the essential relief in the suit is for recovery of possession, Section 7(v)(c) would apply Irrespective of the fact whether the plaintiff asked for declaration of title or not, and Section 7(iv)(c) does not govern such cases. It has application only to declarations properly so called such, for instance, as declarations of public status or a declaration that the plaintiff holds a public office or a declaration as to the meaning of a will or a trust deed or other public documents.

Their Lordships of the Patna High Court in a Full Bench decision Ramkhelawan Sahu v. Surendra Sahi, reported in AIR 1938 Pat 22 (FB), held that Section 7(iv)(c)would not apply to cases where the relief sought is for recovery of possession. It would be useful to quote the following passages In extenso.

'It would seem that there is much misunderstanding In India as to the legal meaning of the word 'declaration' as applied to a remedy to be granted by a Court. The habit has grown up of describing a suit for possession of property as being a suit 'for a declaration of title together with a decree for possession of the property in suit, and the word 'declaration' has been used to mean what would more correctly be described as the finding of fact necessary before the decree for possession can be granted. in every suit for possession the plaintiff cannot succeed unless he proves the fact necessary to establish his title, but the real remedy which he seeks is a decree for delivery of possession. The distinction between the remedy sought and the finding of fact necessary to justify the granting of the remedy may be simply tested by considering whether the plaintiff obtaining an order for possession but having been refused a formal 'declaration' If the decree could come to the appellate Court with a complaint that he had not received the whole of the remedy for which he had asked. If the appellate Court is in a position to tell the plaintiff that the remedy oftpossession is all that the plaintiff is entitled to ask andthat the so-called 'declaration' claimed in the plaint Ismerely a finding of the Court set forth In the Judgmentas distinct from the decree, the jurisdiction for grantingthe remedy, then the so-called 'declaration' claimed in theplaint Is not a declaration at all.

'If, on the other hand, the Appellate Court should find that the plaintiff is really making a claim to a declaration properly so called and that the decree for possession Is merely consequential relief, it may under Section 12 of the Act adjust the matter of the Court-fee in accordance with Section 7, Para (iv) it is this very difference which is at the basis of the practice under which the Court will not ordinarily grant a mere declaration and the plaintiff must claim consequential relief also. Section 7 Para (iv) (c) has application to declarations properly so called, such for instance as declaration of public status, or a declaration that the plaintiff holds a public office, or a declaration as to the meaning of a will or a trust deed or other public documents. It has no reference to the kind of declaration in the sense of a finding of fact as to the plaintiff's title necessary for granting a decree for possession. It is not in the least necessary for a plaintiff in a suit for possession to claim a declaration, indeed declarations in the true sense are rarely required. The plaintiff should only allege the facts necessary to establish his title and that the defendant is wrongfully in possession. If he goes on to claim, in the manner so beloved of pleaders, a declaration of title in addition to an order for possession, the Court may and should treat the case as a claim for possession pure and simple, and Ignore entirely the claim for a 'declaration of title'. Suits for possession of land, houses and gardens are to bear a Court fee as provided by para (v), that is to say, If the land forms an estate paying revenue to Government, at a multiple of the revenue so payable. There are also provisions for valuing the suit where the and does not pay revenue to Government, and also for valuing the suit if the subject-matter is a house or garden. Therefore, the valuation of the suit for Court-fee purposes Is to be determined by the question of whether the suit Is really one for a declaration In the true sense of the word, or whether It is a suit for possession; and, If there be a claim In the plaint for a declaration, the plaint should be examined to see whether It Is a declaration properly so called, or whether it is an unnecessary claim and the suit is really a suit for possession.'

I would say with great respect that the aforesaid passages correctly lay down the distinction between Section 7(iv)(c) and Section 7(v)(c) of the Court-fees Act.

3. With reference to the reliefs claimed In this suit, even without the prayer for declaration of title the plaintiff can be granted the relief for recovery of possession if the plaintiff establishes necessary facts in support of the title. Section 7(v)(c) applies to the facts of this case. Applying Section 7(v)(c) the valuation can be determined at 15 times the net profits of the year preceding the date of filing of the plaint. In this case there are no materials at all as to the net profit of the preceding year. One must therefore fall back upon the market price of the lands. The view taken by the learned District Judge is contrary to law and he exercised his Jurisdiction illegally in reversing the finding of the learned Munsif that the value of the suit was at least Rs. 5000/- and was beyond the pecuniary jurisdiction of that Court.

4. Mr. R. N. Misra further contends that even on the District Judge's own finding that Section 7(iv)(c) appllea and that the suit was valued inordinately low and to evidently arbitrary and capricious, the learned District Judge exercised his jurisdiction illegally in taking 15 times the net profits of the previous years as the criterion for determining the value. Section 7(iv)(c) says that in suchcases the plaintiff shall state the amount at which he values the relief sought. The learned District Judge applied the principle of valuation at 15 times the net profits from Section 7(v)(c) which he held not to apply to this case. . Even on that principle it would be 15 times the net profits that have arisen from the land during the year next before the date of presenting the plaint which I have already indicated before.

A question arises as to whether under Section 7(iv)(c) the plaintiff would be free to value the relief sought as he chooses, or the court has power to alter the same. On this point there is divergence of authorities. In Mt. Rupia v. Bhatu Mahton, AIR 1944 Pat 17 (FB), it has been held that the Court can alter the same if it is arbitrary. On this point it is not necessary to express final opinion as there is some observation in Sathappa Chettiar v. Ramanathan Chettiar, AIR 1958 SC 245, suggesting that the plaintiff shall ordinarily value the relief sought as he chooses under Section 7(iv)(c). This would be examined when occasion arises.

5. In my view, Section 7(v)(c) applies to the facts of this case wherein the mere relief sought Is for possession of the suit lands, and the title of the plaintiff can be gone into to determine if the relief for possession could be granted.

The revision is accordingly allowed with costs throughout. The Judgment of the learned District Judge is set aside and that of the learned Munsif restored.